Cajuncharlie

I'm in a recreational fiction phase. In the past week or two I've read Wilbur Smith's "Triumph of the Sun," Daniel Silva's "The English Assassin," and the updated edition of Nelson DeMille's "Mayday." Current night-time read is Stephen Coonts' "The Disciple." Good story-tellers, all.

In my office I have a copy of the old standard British government style manual, "The Complete Plain Words," by Sir Ernest Gowers.

Unfortunately, somebody borrowed and failed to return my copy of Stunk & White's "Elements of Style." Often criticized for lack of charm but seldom equaled for clarity, for business writing it's hard to beat. My favorite paragraph:

"Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subjects only in outline, but that every word tell." Professor William Strunk, Cornell University

It is certainly a relief that with the new legislation we can all look forward to less bureaucratese and more plain English.

There is one law that can always be relied on: the law of unintended consequences.

Also note the current Government trend to view T&M less favorably than cost reimbursement. Changes to FAR Parts 8, 12, and 16 are in the works to tighten the rules on T&M contracting.

Your contracting officer will likely not respond well to the idea of a T&M subcontract unless you clearly show why no other type will do, and how you will control costs. A D&F a la FAR Part 16 and DFARS 216 is technically not a requirement, as noted above, but going to the contracting officer with either a strong supporting document if your prime contract requires it, or at least to engage in a dialog, that directly addresses the points in FAR and DFARS, would be a practical way to align your plans with customer expectations and allay some concerns.

In your shoes I would document my subcontract file regardless of whether the document had to go to the contracting officer for consent.

My practice is to send the Contracting Officer the requested signature with a note stating that here is the contractor's acceptance signature on the document offered by the government.

If any of them picked up on what I wrote, none of them has responded to it.

Thank you for sharing.

As a contractor I have come across several situations in which the Government's contractor performance evaluations have been more harsh than the facts warrant, admittedly a subjective observation, and one situation in which the Government did not follow its own procedures for evaluating performance, but would not reconsider its evaluation even in the face of documentation that was purely factual and objective in nature, signed in the field by both Government and contractor representatives, that contradicted the Government's findings and did not support the evaluation conclusions. The Government gave the impression of wanting to stonewall rather than admit even the most minor error, in spite of obvious factual inconsistencies between evaluations and other Government documents.

Of course a contractor would love to be able to hold the Government accountable for following its own procedures, or more accurately, not following them, regardless of whether they are within the four corners of the contract. Contractors are required to follow certain rules, and both as contracting parties and as taxpaying legal entities, should be able to rely on the Government to do likewise.

The two COFC decisions did not provide that level of relief to the contractors who sought it, but did provide some interesting discussions that pointed to circumstances in which such relief might be granted.

It appears that BLR lost because it failed to clearly state a claim to the contracting officer. Along the way, however, BLR made it through some significant hurdles, having asserted entitlement to relief as a matter of right, that the relief was related to the contract, and mootness. Even though the basis of the claim and nature of relief sought were clearly expressed, it was not done in the context of a claim and did not specify that it was indeed a claim. Having failed the test of having submitted a CDA claim, it could not logically pass the last test, that there was a denial or deemed denial of a claim. The discussions of bias, mootness, standard of review, and jurisdiction are most edifying.

Todd apparently lost because it failed to manage properly its subcontracting effort, and no amount of subsequent argument about contributing factors, no matter how serious, could change that. Along the way, this case raised the subject of Christian in a new way, that contractors are happy to see. Like BLR, this case goes into the question of standing, and for whose benefit the regulations are intended, chasing the intent all the way back to the source to find in many cases that is it not only the Government but also contractors or bidders. To me it was especially interesting how the Court took part of Todd's complaint that was mistakenly limited to an Engineering Regulation and also brought in the FAR treatment of the subject to give Todd's point equitable deliberation.

My thinking about the FAR and contracts has continued to change since I got into the business in 1974, and I hope it always will. With this kind of food for thought, in this kind of forum, we should all keep growing, learning, and changing.

FAR Subpart 15.4 is not that difficult to follow, and the reference guides basically expand and amplify what's in FAR.

The reference guides are good, but in my experience there has been nothing on this subject written more clearly than what they replaced: the old Armed Services Pricing Manuals I and II.

http://www.library.dau.mil/ASPM_v1_1986.pdf (edit 32.9 MB)

http://www.library.dau.mil/ASPM_v2_1987.pdf (edit 12 MB)

They may not be current on details, but for fundamental concepts and basic principles they are hard to beat, and may provide a good introduction for beginners.

Maybe it's just me, but I have trouble with the concept of "rates approved by DCAA." I always thought DCAA audited and recommended, but it took a warranted Contracting Officer to approve. Am I out of line?

Silly me! I thought a clearance belonged to a job, not an individual. In that situation, it would be impossible for anyone other than an employee of an incumbent (on at least some classified contract) to have a clearance. What did I miss?

At the risk of reviving a stale topic that folks may not be very interested in, let me offer a couple of thoughts.

I have worked for companies that regarded the lowest priced technically acceptable quote as the place to start price negotiations. I always took a dim view of that practice, and certainly understand Vern's concerns about the ethics of negotiating price when there are solicitation provisions that describe a different process, but that's how many organizations do business. There may be room in the federal way of doing things, particularly SAP, to implement commercial best practices (if this indeed is one).

On another aspect of this thread, I have seen times when agencies canceled solicitations because "all proposals were outside the awardable range." It took a while to find what that meant: by statute, public works contracts cannot be awarded at a price more than 25% over the gov't estimate (which excludes profit). As bidders in a small prequalified MATOC pool, we thought the agency was throwing the baby out with the bathwater. After several canceled RFPs, the agency finally called for discussions on a task order. We went in with responsive base proposal and more importantly an alternative proposal based on a longer schedule (nonresponsive to the original RFP) that allowed us to lower our price because of the availability of a specialized piece of equipment at a more favorable rate by waiting in line for it instead of paying a premium to use it within the agency's schedule. Eventually on that basis we won the job. The moral was, I think, it may be in the agency's and taxpayers' best interest to open discussions to find out what can reasonably be done or changed to fill a requirement within budget. It may not always work out by allowing an award, but at least it will give the agency a better idea of why a solicitation failed and an opportunity to align future solicitation requirements with market conditions.

One of my favorite "pieces" of the FAR, from a contractor's perspective seemingly observed most often in the breach, is 1.602-2( b ).

Again I find myself so old that what was taught when I was in school has eroded due to popular misuse, to the point where what used to be always wrong is now sometimes right.

Examples:

"comprised of" instead of "composed of" or "comprising" was always wrong but is now acceptable

"judgement" (the only word I missed in 4th grade spelling) is now accepted as a correct alternative spelling although back then it was just plain wrong

Many thanks, Vern. You win the luggage.

Somewhere in the depths of the Federal or Joint Travel Regulations is a prescription to use 55% of the usual per diem rates for living allowances for temporary assignments over 60 days, or so I am told, but cannot find it.

Can anybody steer me to the answer?

Be careful! "Bimonthly" is ambiguous. It can mean every two months or twice per month.

Nope. The only meaning of "bimonthly" is every two months.

Twice a month would be "semi-monthly."

We all know the difference between "semi-annual" and "bi-annual" (or for gardeners, "biennial"), but we all seem to get confused when we change years to months.

Yes, we are the prime, suffering from a flood of onerous paperwork demands from an inexperienced Contracting Officer who requires more than the FAR or the contract does.

In this case, we had reached agreement with our subcontractor, subject to Contracting Officer's consent, and had submitted our package requesting consent, so the main requirement for us, and the additional delay, was to get the CCCOPD from the sub, pass it along to the Government, and wait for a consent letter. Our package had enough "information other than cost or pricing data" from the sub, and we had done and submitted enough homework to be confident that our price analysis was strong and well-supported.

But with this customer, a subcontract price that's noncompetitive is not fair and reasonable, regardless of FAR Subpart 15.4, unless and until it has gone through the same kind of cost analysis that this customer routinely does in excruciating detail. In their eyes, any other method of determining noncompetitive subcontract price reasonableness is not only suspect; it's wrong. And they always want a CCCOPD in the absence of competition, again regardless of FAR 15.403-4

In a "partnering" meeting (I still don't know the words to "Kumbaya") we discussed price reasonableness, commercial items, and other subjects with the Contracting Officer, each of us making our thoughts clear, without reaching resolution of widely divergent views. Our views were so unconventional as to constantly assure compliance with our approved purchasing system and FAR Subpart 15.4. The customer constantly disagreed, questioned everything but our ancestry, and always wanted more. As we were winding up, the Contracting Officer, recapitulating, said, "So we are agreed that dredging is not a commercial item." My boss was floored. I spoke up before he did, and said, "We do not agree but we will obey." And we have.

We went right back to our sub and told them we had talked to the customer and they must submit a CCCOPD, which they did, although it took time to get a letter out, get the certificate back, raise a letter and send it to the customer, and get a consent letter back. (We do important things such as these on letterhead with a "wet" signature, not relying on email other than as a means of quick transmittal, followed up by the original.)

The overall result of all this is indeed delay and disruption to an already tight project schedule whose end date is fixed. There is no question in our minds that numerous changes on the project have resulted in acceleration of the work effort, although the customer almost certainly disagrees; and the constant demand for more and unnecessary paperwork not only means more delays, but also is another factor driving up cost at a time when our CPAF project is squeezing every penny.

There are other changes for which we preparing the whole nine yards of proposals in the format from FAR Table 15-2, with a file dump from our approved accounting system. We had not thought to include copies of time sheets, invoices, etc. Will have to chew on that suggestion for a while. With this bunch, though, it seems the more detail we give them, the happier they are, the more they have to chew on, and the longer it takes them to respond, while the fast-track project schedule goes down the tubes, but of course it is all our fault since we didn't give them enough time to review a complex consent request.

Hope this sounds more like venting than whining, but that's how it is in the real world, and maybe the newbies can benefit from some of these war stories from the trenches. Rookies, take heed. Your federal customers often remain bereft of practical business sense, blissfully ignorant of the consequences of their actions, and unaffected by any real understanding of the FAR, particularly 1.602-2( b ).

Appreciate all the help with the musical question, "Is there anything that clearly says construction cannot be a commercial item for the purposes of an exception from TINA cost or pricing data requirements?" So far, it looks like there is not.

Yes, we have the DSC and VEQ clauses, and all the rest that one might expect, want, or need.

Is there something I have missed that specifically prohibits calling construction, of a type not unique to federal customers, a commercial item?

FAR 2.101 doesn't. Is our esteemed customer just giving us "tribal lore" or is there some policy guidance that we haven't found?

(BTW miskeyed DY above but meant CY for cubic yards.

Somehow I seem to be doing better this evening on the HackBerry than I did with a full size monitor and keyboard.)

Can't tell y'all how many times I've preached the sermon, don't try to second guess the market.

The business development version goes like this: If you want to team with somebody because you need their resume to earn best value brownie points, fine. If you want to team with somebody because you think they provide you the best value, it's time for push-back. Let's send out a quick budgetary RFQ or mini-RFP, ask for qualifications and references along with budgetary price and schedule, and see what kind of results we get. You may be pleasantly surprised by what other potential sources can do for you.

For little post-award projects that come up on site where multiple contractors are mobilized, people tend to say just cut a change order to so-and-so, or limit the bidders list to those on site. My thinking is we go full and open, best value, and see where that takes us. Even if you end up awarding to somebody already on site, you have competition on file, and a much cleaner file.

Unless you need to go SB set-aside. If you have room on site for another entity and can get competition among SBs, go for it.

Also if your customer is DoD, watch out for DFARS 252.225-7001, Buy American Act And Balance Of Payments Program, JUN 2005.

Follow the old rule of thumb: RTFC (read the f-f-f-f-full contract).

There was an old forum topic about construction as a commercial item, but its focus was primarily on the contracting process and form of contract, areas that do not help my current hypothetical concern.

As a prime contractor on a Government job, we are subcontracting with our FAR-based approved purchasing system for construction on a fixed unit price basis, using a full set of FAR and company terms and conditions, including insurance, Davis-Bacon, Miller Act bonds, etc.

My main interest in calling some kinds of construction commercial is the TINA exception to the requirement for certified cost or pricing data, as described in FAR 15.403-1( b )(3) and ?( c )(3).

Examples include dredging and piledriving, added to current subcontract scope noncompetitively for work on a fixed and tight schedule in a congested area, not big money overall in the context of this prime contract or our subcontracts, but >$650K.

We have provided a strong price analysis as described in FAR 15.404-1( b )(ii), -(iii), -(v), and ?(vi), previous reasonable contract prices, $ per LF of piledriving or DY of dredging, our independent estimate, and market research, respectively. That?s not good enough for our esteemed client, who insists on certified cost or pricing data.

Our Contracting Officer is imposing a dichotomy that we don?t see: A job is either construction or a commercial item, but cannot be both.

We disagree but have said we will obey. Our custoer remains unconvinced by our pointing out that dredging and piledriving are, as we used to say, sold in substantial quantities to the general public. Many different kinds of non-federal customers are out there for dredging and piledriving, not only state or local governments but also yacht clubs, marinas, real estate developers, and even rich private individuals.

Are we all wet in thinking that construction can be commercial and TINA exempt?

Well, then, you're doing all you can do.

Thought so, but still good to hear it from somebody with some distance from this mess.

Thanks to all who weighed in.

In this (of course) hypothetical situation, the "independent contractor" matter was a piece of ancillary support we were looking for as part of our overall approach, just one aspect of a complex response we are preparing.

1. Written KO direction has been received. Reply letter (we always put more on letterhead, with wet signature, than our customer would like) is drafted and in review, another one of those to be written by committee of very senior folks with yours truly as main scribe or scrivener doing the initial draft, requesting review, collating input, resoving contradictory views either major or minor, and finalizing the letter.

2. Draft includes initial notice under clauses in the contract from FAR 52.243-2 Alt III para (c ) and 52.243-7. (I always like to confirm, when I write about clauses, that they are not only from the FAR but also in the contract. Sometimes our client folks do not know the difference, and have no clue about Christian, much less what it does and does not cover.)

3. Draft states estimated cost and schedule impact to follow. (Wanted to put the KO on notice right away.) Also states schedule impact is expected to preclude achievement of project's final construction milestone.

4. 52.243-2 Alt III is pretty broad in scope of what kind of changes are allowed. Don't see any wiggle room there.

5. As we do have written direction, we will ask for reconsideration and offer a compromise that should resolve the client's concerns without being so onerous, endangering performance, or impacting cost and schedule.

6. Consensus is we do not want to leave the realm of change, notice, and equitable adjustment for the land of final decisions and claims, at least not yet.

We have, however, made it clear to this client, on previous contracts, that we are prepared to go to the mat. Our executive management's old attitude of rolling over in the interest of customer relations has been superseded based on a KO remark off the record after a successful closeout settlement meeting in which we took a hard line and achieved our goal because we had the audited documentation to support it, after we said we were sorry it had to come to a decision to go to the board if we could not settle at this level: We were told we were a bunch of pansies compared to some other contractors. Since then our management has made it clear that we should not be afraid to exercise all the rights and remedies available under the system; that's what they're there for. (Do KOs no longer read FAR 1.602-2(b )? Or do they just push these things out so payment comes from the judgment fund instead of project budget?)

Under this new philosophy we have gone to the board with a couple of combined claim appeals totalling less than $200K. The client wanted to hold our feet to the fire and make it as long and expensive a process for us as possible to reach a settlement for anything more than a few pennies on the dollar of documented actual, allowable, allocable, and reasonable costs; and we went all the way until they blinked and settled at the eleventh hour after all-day telephone mediation initiated by the board's judge Thursday before a hearing scheduled for the following Tuesday. Our settlement was well over half of our requested amount, not as much as we believed we were entitled to, but enough to sign and close the matter.

On a previous contract with fixed unit prices, when we were approaching completion of the estimated and funded quantity of the largest CLIN that made up most of the contract, but were not yet halfway through construction, we started asking by letter for guidance and funding to avoid any potential schedule delay. The answer was a telephone call from the KO in the background with her supervisor on the line accusing us of threatening to walk off the job and saying "If you stop work we're going to default you." My response was that the only threat was the one I just heard, but please understand that you have the Anti-Deficiency Act that prohibits you from contracting unless you have a document from Finance & Accounting certifying that funds are available, and we are in a similar situation, so we requested guidance from the KO. They were not pleased but understood and gave a commitment to pay for every yard we placed, so I sent back a letter saying we were continuing to work based on the KO's verbal commitment. It was followed in a few days by a unilateral mod that added the required additional quantity and funding, apparently after they had received a survey report with a revised estimated quantity that was very close to ours.

Sorry to be so long-winded, but we are not about to be bullied. We are ready to "partner" even though it was right after a formal, facilitated "partnering" meeting that this new and onerous direction was issued. We have learned that meetings are great, and generally result in alignment of expectations, (yes, we keep detailed minutes), but often they are followed by incoming poison pen letters that indicate otherwise, and we have always responded professionally in a neutral tone and objective manner with facts to support our approach, usually successfully sooner or later.

We are tracking costs of compliance with the KO's new requirements in our approved timekeeping system.

The problem is that if we are required to compete small pieces of additional construction to be performed in congested area on a project whose already tight schedule has been accelerated by not moving the goal post after documented delays for which the client is responsible, or go "full and open" instead of competing among the major subs already on site where there is a bit more elbow room for the work and adequate price competion is expected, there is no way to successfully complete the project on time, which is also a matter of award fee. (That's the elephant in the room. We can be right and still be damned with faint praise on award fee, which is difficult if not impossible to dispute.)

Similarly, the project is in danger if we are not allowed to self-perform what we can do efficiently, even though we have submitted a six-page letter with rationale (I hate the word "justification" because it has always sounded to me like an excuse for doing something wrong) discussing in detail how and why our self-performance is the best value, lowest cost, most efficient and cost-effective, least schedule risk, etc.

Meanwhile the client wants sixty days advance notice of any planned self-performed work or noncompetitive procurement, and asserts authority to disapprove any such actions. The stated reason is concern about our pricing, despite our approved puchasing system and our scrupulous and well-documented following of the process and rationale in FAR Subpart 15.4. The problem appears to be that we do not routinely perform the same kind of very detailed and conservative cost analysis of certified cost or pricing data that is instilled in this agency's "corporate culture." We follow 15.4 and do only price analysis if that gets us to a strong basis for a determination of price reasonableness, cost analysis only to the extent absolutely necessary using information other than cost or pricing data if possible, and cost analysis of certified cost or pricing data only as a last resort. This client apparently is not happy with anything other than their method of cost analysis, and is suspicious of anything else, regardless of 15.4.

The minute the KO directs us to do anything other than our planned approach, the client assumes responsibility for the consequences, which we believe will be disastrous. The KO does not seem to realize that, but it will be part of our letter response, once we find a suitably tactful way to say so. Again, the elephant in the room is award fee. We have to walk a fine line to deal with this very diplomatically or risk losing fee based on subjective opinions.

We know where to go with this. The main task now is crafting the letter, or more accurately, satisfying all the senior folks who have ideas about how the letter is to read.

If that's what you're looking for, I don't think that's an ASPR clause. That's old "boilerplate" language used in a rather standard SOW format. The SOW usually had several parts - background, scope, services to be provided, etc. Under "Services to be provided", it usually began with something like:

"The contractor, as an independent contractor, and not as an agent of the government shall solely be responsible for performance of the following work. Furthermore contractor personnel performing the work shall be considered as employees of the contractor and not as employees or agents of the government."

I think people felt more comfortable saying this so they wouldn't be accused of buying personal services.

Thanks, FF. It's all starting to come back to me, although I was hoping there was a bit more.

(They say memory is the second thing to go. I forget what was first...)

The hypothetical situation is a cost type contract from a government client who is getting a little too deep into telling the prime how to do subcontracting, despite the prime's approved purchasing system, for buys below the contract's consent threshold, including make-or-buy decisions that were "make" in the (expressly) accepted proposal, although not all the current subcontracting or make-or-buy approaches had been explicitly stated in the proposal.

Prime believes that any client direction to do something other than the prime's current planned subcontracting (or "make") approach will invoke the law of unintended consequences, to the detriment of the program, and is looking for polite ways, grounded in FAR, to let the client know in writing why they don't want to go there.

Hoped there would be a bit broader wording associated with my muddy recollection of "independent contractor," but if that's all there is, so be it, although I will stay tuned to see if anybody else chimes in.

Appreciate all the feedback received so far. Thanks to all.

"Can you hum a few bars" of the ASPR clause?

Hum-m-m-m: Contractor shall serve as an independent contractor and shall be solely responsible for performance of the work under this contract. Contractor employees shall not be considered employees or agents of the Government. etc, etc

Where would I find that kind of language now? It's not in Permits & Responsibilities; that was always separate.

My boss and I grew up with ASPR and were looking for the current equivalent of a clause we remember entitled, "Independent Contractor."

Goodness knows how many archived FARs we might have to look through to find out what happened to this clause, and more importantly, if and where the old language now appears.

Anybody remember this one? Know what happened to it? Know what its current incarnation looks like?